The opinion of the court was delivered by: BY THE COURT; RONALD L. BUCKWALTER
BUCKWALTER, J. February 4, 1993
This case involves plaintiff James Lewis Jones' allegations that he received HIV contaminated blood during a surgery performed at the Philadelphia College of Osteopathic Medicine in October, 1986. Defendants Philadelphia College of Osteopathic Medicine, Hospital of the Philadelphia College of Osteopathic Medicine, Osteopathic Medical Center of Philadelphia, Philip Spinuzza, D.O. and Dr. Dickerson have moved to dismiss certain paragraphs in the complaint pursuant to Fed. R. Civ. P. 12(b)(6). These paragraphs allege, essentially, that the plaintiff was not informed of all of the alternatives to blood transfusions, including the options of autologous blood donations (banking one's own blood), designated donor transfusions (banking the blood of friends and relatives known to be free of the HIV virus), and deferral of surgery until such time as it could be assured that the blood supply was 100% safe. These paragraphs also allege that plaintiff was not apprised of all of the risks involved in receiving a blood transfusion, including the risk of contracting HIV, the limitations of the Elisa test for HIV, and the risk of false negatives. These moving defendants contend that a blood transfusion is not a surgical or operative procedure, and thus there is no duty to obtain an informed consent from a patient regarding a transfusion. They also contend that even if an informed consent is necessary, only the treating physician, not the hospital or other persons, have the duty to inform the patient. Plaintiff argues that these defendants did have a duty to inform him of the risks and options involved, and that there are alternative theories (other than the doctrine of informed consent) upon which to hold these defendants liable, including failure to warn, breach of the implied warranty of merchantability and breach of the implied warranty of fitness for a particular purpose.
Furthermore, one of the named defendants, Dr. Dickerson, is deceased. His counsel has moved to dismiss Dr. Dickerson from the action. In response, plaintiff has made a cross-motion to substitute the estate of Dr. Dickerson for Dr. Dickerson as a party defendant.
For the following reasons, moving defendants' motion to dismiss is granted in part and denied in part. However, plaintiff will be given leave to amend the dismissed paragraphs of the complaint within twenty days in accordance with this memorandum and order. Plaintiff's cross motion to substitute the estate of Dr. Dickerson as a defendant is granted.
On or about October 6, 1986, plaintiff James Lewis Jones ("plaintiff" or "Jones") was admitted to the Hospital of the Philadelphia College of Osteopathic Medicine and the Osteopathic Medical Center, both of which institutions are under the control and affiliated with the Philadelphia College of Osteopathic Medicine, by his primary treating physician, Conrad Fraider, D.O., for the purposes of undergoing a lumbar myelogram administered to diagnose the cause of plaintiff's ongoing severe low back pain.
Dr. Fraider advised plaintiff that he should undergo surgery in order to alleviate his condition. On or about October 8, 1986, plaintiff underwent the surgery at the Hospital of the Philadelphia College of Osteopathic Medicine and the Osteopathic Medical Center, with Dr. Fraider as the attending physician and Dr. Spinuzza as the assisting physician. During the surgery, plaintiff lost blood and accordingly received nine units of packed cells; two units of fresh frozen plasma were administered intraoperatively. One of the units of fresh frozen plasma came from an anonymous donor who was infected with the virus known to cause AIDS, the HIV virus. Prior to the transfusion of this unit of blood, plaintiff was never advised by any of the defendants, nor did he know, that there was a potential risk of contracting AIDS as a result of contamination of the unit of blood by the HIV virus.
Paragraph 24 of the second amended complaint alleges that none of the three physicians involved in the plaintiff's surgery or medical screening (presumably defendants Drs. Fraider, Spinuzza and Dickerson) advised the plaintiff of the limitations of the Elisa test kit used on blood donated by anonymous donors, the right to autologous donations or designated donor transfusions, the risk of false negatives in the testing procedure, the risk of contracting HIV or AIDS from a blood transfusion, or that the surgery could be deferred until such time as the blood supply was "100% safe."
Paragraph 26 of the second amended complaint alleges that prior to the surgery, on or about October 6, 1986, the plaintiff executed a document encaptioned "Informed Consent to Operation, Medical Procedure, Blood Transfusion", the contents of which were specified by the Hospital of the Philadelphia College of Osteopathic Medicine in conjunction with the Philadelphia College of Osteopathic Medicine and the Osteopathic Medical Center, which form failed to inform him of the aforementioned options and risks.
Defendants Philadelphia College of Osteopathic Medicine, Hospital of the Philadelphia College of Osteopathic Medicine, Osteopathic Medical Center of Philadelphia, Philip Spinuzza, D.O. and Dr. Dickerson (collectively "moving defendants") have moved to dismiss Paragraphs 23, 24 and 26 of the second amended complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. They argue that they cannot be held liable for the alleged failure to adequately inform plaintiff, since they had no duty to obtain patient's informed consent, and that informed consent is not necessary for blood transfusions anyway. Plaintiff responds that these defendants can be held liable for their failure to obtain his informed consent, and that alternative theories of liability attach also (failure to warn, breach of the implied warranty of merchantability and breach of the implied warranty of fitness for a particular purpose).
Dr. Dickerson is named as a defendant in this action. He is deceased. His counsel has moved to dismiss him as a party for that reason. Plaintiff has responded with a cross motion to substitute the estate of Dr. Dickerson as a party defendant.